EXHIBIT 1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made and entered into this
27th day of December, 1995 by and among Thermo Power Corporation,
a corporation organized under the laws of the State of Delaware
(the "Seller"), and National Westminster Bank Plc, New York
Branch, a company organized under the laws of England (the
"Buyer").
In consideration of the premises and the mutual covenants,
agreements and provisions herein contained, the parties hereto
agree as follows:
ARTICLE 1
PURCHASE AND SALE OF SHARES
Section 1.1. Delivery of Outstanding Shares. At the
Closing (as defined in Section 2.1 hereof), and subject to the
terms and conditions contained in this Agreement, the Seller
shall transfer to the Buyer all right, title and interest in and
to 7,312 shares of the common stock, $1.00 par value per share
(the "Shares"), of Thermo Electron Corporation ("Thermo
Electron"), free and clear of all liens, encumbrances, charges,
equities or restrictions.
Section 1.2. Purchase Price. In exchange for the Shares,
and subject to the terms and conditions contained in this
Agreement, the Buyer agrees to pay the Seller the aggregate
amount of $361,944.00 (the "Purchase Price") at the Closing.
ARTICLE 2
CLOSING
Section 2.1. Time and Place of Closing. The closing of the
transactions contemplated by this Agreement (the "Closing") shall
occur at the offices of Thermo Electron Corporation, at 00 Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, on December 29, 1995 or on
such other date or time as the Seller and the Buyer may agree.
Section 2.2. Action to be Taken by the Buyer at the
Closing. At the Closing, in addition to the taking of such other
action as may be provided in this Agreement, the Buyer shall
cause the Purchase Price to be paid by wire transfer to such
account or accounts as may be directed by the Seller.
Section 2.3. Action to be Taken by the Seller at the
Closing. At the Closing, in addition to the taking of such other
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action as may be provided in this Agreement, the Seller shall
deliver certificates for the Shares to the Buyer, duly endorsed
to the Buyer or accompanied by duly executed stock powers.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of the Seller.
The Seller represents and warrants to the Buyer that:
(a) Ownership of Shares; Authority to Transfer. The
Shares are not encumbered and are freely transferable by the
Seller. The Seller holds good and marketable title to the Shares
to be transferred to the Buyer hereunder and no third party can
claim any right thereto or make any claim thereon. The transfer
of the Shares to the Buyer pursuant to this Agreement will vest
in the Buyer full title to the Shares, free and clear of all
liens, claims, equities, options, calls, voting trusts,
agreements, commitments and encumbrances whatsoever.
(b) Authority. The Seller has full right, power,
capacity and authority to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby.
This Agreement constitutes the valid and binding obligation of
the Seller enforceable against the Seller in accordance with the
terms hereof. Neither the execution, delivery and performance of
this Agreement nor the consummation of the transactions
contemplated hereby will (i) conflict with or result in a
violation, breach, termination or acceleration of, or default
under (or would result in a violation, breach, termination,
acceleration or default with the giving of notice or passage of
time, or both) any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, agreement or other
instrument or obligation to which the Seller is a party or by
which the Seller or any of its properties or assets may be bound
or affected or (ii) result in the violation of any order, writ,
injunction, decree, statute, rule or regulation applicable to the
Seller or its properties or assets. No consent or approval by,
or notification to or filing with, any court, governmental
authority or any third party is required in connection with the
execution, delivery and performance of this Agreement by the
Seller or the consummation of the transactions contemplated
hereby.
Section 3.2. Representations and Warranties of the Buyer.
(a) Authority. The Buyer represents and warrants to
the Seller that the Buyer has full right, power, capacity and
authority to execute, deliver and perform this Agreement and to
consummate the transactions contemplated hereby. This Agreement
constitutes the valid and binding obligation of the Buyer
enforceable against the Buyer in accordance with the terms
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hereof. Neither the execution, delivery and performance of this
Agreement nor the consummation of the transactions contemplated
hereby will (i) conflict with or result in a violation, breach,
termination or acceleration of, or default under (or would result
in a violation, breach, termination, acceleration or default with
the giving of notice or passage of time, or both) any of the
terms, conditions or provisions of any note, bond, mortgage,
indenture, license, agreement or other instrument or obligation
to which the Buyer is a party or by which the Buyer or any of its
properties or assets may be bound or affected or (ii) result in
the violation of any order, writ, injunction, decree, statute,
rule or regulation applicable to the Buyer or its properties or
assets. No consent or approval by, or notification to or filing
with, any court, governmental authority or any third party is
required in connection with the execution, delivery and
performance of this Agreement by the Buyer or the consummation of
the transactions contemplated hereby.
(b) Reliance on Publicly Available Information. The
Buyer has, in connection with its decision to purchase the
Shares, relied solely upon information contained, or incorporated
by reference, in documents filed by Thermo Electron with the
Securities and Exchange Commission (the "Commission") pursuant to
the Securities Act of 1933, as amended (the "Securities Act") or
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the Buyer has not relied in any manner on any other
statements of the Seller or of Thermo Electron other than the
representations and warranties contained herein.
(c) Accredited Investor. The Buyer is an "accredited
investor" within the meaning of Rule 501 of Regulation D
promulgated under the Securities Act.
ARTICLE 4
RESALE RESTRICTIONS; REGISTRATION RIGHTS
Section 4.1. Resale Restrictions. The Buyer acknowledges
that the Shares have not been registered under the Securities Act
and that the Shares, in the hands of the Buyer, will constitute
restricted securities. Accordingly, until such time as the
Registration Statement (as defined below) has been declared
effective by the Commission, the Buyer will not, directly or
indirectly, voluntarily offer, sell, pledge, transfer or
otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the Shares except
in compliance with the Securities Act and the rules and
regulations promulgated thereunder and in compliance with any
applicable state securities laws, and a legal opinion
satisfactory to Thermo Electron is given to that effect.
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Section 4.2. Registration Requirements.
(a) As soon as practicable after the Closing, Thermo
Electron will file a registration statement (the "Registration
Statement") under the Securities Act with respect to the resale
of the Shares by the Buyer, and Thermo Electron will use its best
efforts to cause the Registration Statement to become effective
as soon as practicable. The Buyer undertakes in connection
therewith to execute and deliver in a timely manner all such
information and materials and take all such action as may be
required in order to permit Thermo Electron to comply with all
applicable legal requirements and to obtain the acceleration of
the effective date of the Registration Statement.
(b) Thermo Electron will use its best efforts to
prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used
in connection therewith as may be necessary to keep the
Registration Statement effective until all the Shares registered
thereunder have been sold pursuant thereto or until, by reason of
Rule 144(k) of the Commission under the Securities Act or any
other rule of similar effect, the Shares are no longer required
to be registered for the sale thereof by the Buyer. The Buyer
acknowledges that there may be times when Thermo Electron must
suspend the use of the prospectus forming a part of the
Registration Statement until such time as an amendment to the
Registration Statement has been filed by Thermo Electron and
declared effective by the Commission, or until such time as
Thermo Electron has filed an appropriate report with the
Commission pursuant to the Exchange Act. The Buyer hereby
covenants that it will not sell any Shares pursuant to said
prospectus during the period commencing at the time at which
Thermo Electron gives the Buyer notice of the suspension of the
use of said prospectus and ending at the time Thermo Electron
gives the Buyer notice that the Buyer may thereafter effect sales
pursuant to said prospectus, and Thermo Electron's
indemnification obligations in Section 4.4 will not apply to
sales made in violation of this provision.
Section 4.3. Registration Procedures.
(a) Thermo Electron will furnish to the Buyer with
respect to the Shares registered under the Registration Statement
(and to each underwriter, if any, of such Shares) such number of
copies of prospectuses and preliminary prospectuses in conformity
with the requirements of the Securities Act and such other
documents as the Buyer may reasonably request, in order to
facilitate the public sale or other disposition of all or any of
the Shares by the Buyer. The Buyer hereby represents, warrants
and covenants that it will comply with the applicable provisions
of the Securities Act and of such other securities or blue sky
laws as may be applicable in connection with any use of such
prospectuses or preliminary prospectuses.
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(b) Thermo Electron will file documents required
of Thermo Electron for normal blue sky clearance in a reasonable
number of states specified in writing by the Buyer, provided,
however, that Thermo Electron shall not be required to qualify to
do business or consent to service of process in any jurisdiction
in which it is not now so qualified or has not so consented.
(c) Thermo Electron will bear all expenses in
connection with the procedures in paragraphs (a) through (c) of
this Section 4.3 and the registration of the Shares pursuant to
the Registration Statement, other than fees and expenses, if any,
of counsel or other advisers to the Buyer.
(d) Thermo Electron understands that the Buyer
disclaims being an underwriter with respect to the Shares, but
the Buyer being deemed an underwriter shall not relieve Thermo
Electron of any obligations it has hereunder.
Section 4.4. Indemnification.
(a) For the purpose of this Section 4.4:
(i) the term "Selling Shareholder" shall mean the
Buyer and any person controlling the Buyer within the
meaning of Section 15 of the Securities Act;
(ii) the term "Registration Statement" shall mean
any preliminary prospectus, final prospectus, exhibit,
supplement or amendment included in or relating to the
Registration Statement referred to in Section 4.2; and
(iii) the term "untrue statement" shall mean
any untrue statement or alleged untrue statement of a
material fact in the Registration Statement, or any omission
or alleged omission to state in the Registration Statement a
material fact required to be stated therein or necessary to
make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) Thermo Electron agrees to indemnify and hold
harmless each Selling Shareholder from and against any losses,
claims, damages or liabilities to which such Selling Shareholder
may become subject (under the Securities Act or otherwise)
insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of, or are
based upon, any untrue statement contained in the Registration
Statement on the effective date thereof, or arise out of any
failure by Thermo Electron to fulfill any undertaking included in
the Registration Statement, and Thermo Electron will reimburse
such Selling Shareholder for any legal or other expenses
reasonably incurred in investigating, defending or preparing to
defend any such action, proceeding or claim, provided, however,
that Thermo Electron shall not be liable in any such case to the
extent that such loss, claim, damage or liability arises out of,
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or is based upon, an untrue statement made in such Registration
Statement in reliance upon and in conformity with written
information furnished to Thermo Electron by or on behalf of such
Selling Shareholder specifically for use in preparation of the
Registration Statement, or the failure of such Selling
Shareholder to comply with the covenants and agreements contained
herein respecting sale of the Shares.
(c) The Buyer agrees to indemnify and hold harmless
Thermo Electron (and each person, if any, who controls Thermo
Electron within the meaning of Section 15 of the Securities Act,
each officer of Thermo Electron who signs the Registration
Statement and each director of Thermo Electron) from and against
any losses, claims, damages or liabilities to which Thermo
Electron (or any such officer, director or controlling person)
may become subject (under the Securities Act or otherwise),
insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of, or are
based upon, any failure of the Buyer to comply with the covenants
and agreements contained herein, or any untrue statement
contained in the Registration Statement on the effective date
thereof if such untrue statement was made in reliance upon and in
conformity with written information furnished by or on behalf of
the Buyer specifically for use in preparation of the Registration
Statement, and the Buyer will reimburse Thermo Electron (or such
officer, director or controlling person), as the case may be, for
any legal or other expense reasonably incurred in investigating,
defending or preparing to defend any such action, proceeding or
claim.
(d) Promptly after receipt by any indemnified person
of a notice of a claim or the beginning of any action in respect
of which indemnity is to be sought against an indemnifying person
pursuant to this Section 4.4, such indemnified person shall
notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions
hereinafter stated, in case any such action shall be brought
against an indemnified person and such indemnifying person shall
have been notified thereof, such indemnifying person shall be
entitled to participate therein, and, to the extent it shall
wish, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified person. After notice from the
indemnifying person to such indemnified person of its election to
assume the defense thereof, such indemnifying person shall not be
liable to such indemnified person for any legal expenses
subsequently incurred by such indemnified person in connection
with the defense thereof, provided, however, that if there exists
or shall exist a conflict of interest that would make it
inappropriate, in the opinion of counsel to the indemnified
person, for the same counsel to represent both the indemnified
person and such indemnifying person or any affiliate or associate
thereof, the indemnified person shall be entitled to retain its
own counsel at the expense of such indemnifying person; provided,
however, that no indemnifying person shall be responsible for the
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fees and expenses of more than one separate counsel for all
indemnified parties.
Section 4.5. Termination of Conditions and Obligations.
The conditions precedent imposed by this Article 4 upon the
transferability of the Shares shall cease and terminate as to any
particular number of the Shares when such Shares shall have been
effectively registered under the Securities Act and sold or
otherwise disposed of in accordance with the intended method of
disposition set forth in the Registration Statement covering such
Shares or at such time as an opinion of counsel satisfactory to
Thermo Electron shall have been rendered to the effect that such
conditions are not necessary in order to comply with the
Securities Act.
ARTICLE 5
GENERAL
Section 5.1. Notices. All notices, requests, demands,
consents and other communications which are required or permitted
hereunder shall be in writing, and shall be deemed given when
actually received or if earlier, one day after deposit with a
nationally recognized air courier or express mail, charges
prepaid or three days after deposit in the U.S. mail by certified
mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Seller or to Thermo Electron:
Thermo Electron Corporation
00 Xxxxx Xxxxxx
Post Office Box 9046
Waltham, Massachusetts 02254-9046
Attention: Treasurer
With a copy to:
Thermo Electron Corporation
00 Xxxxx Xxxxxx
Post Office Box 9046
Waltham, Massachusetts 02254-9046
Attention: General Counsel
If to the Buyer:
National Westminster Bank Plc,
New York Branch
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: ________________
With a copy to:
0
XXXX
Xxxxxxxx Xxxxxxxxxxx Xxxx Xxx,
Xxx Xxxx Branch
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: ________________
or to such other address as any party hereto may designate in
writing to the other parties, specifying a change of address for
the purpose of this Agreement.
Section 5.2. Survival and Materiality of Representations.
Each of the representations, warranties and agreements made by
the parties hereto shall be deemed material and shall survive the
Closing and the consummation of the transaction contemplated
hereby.
Section 5.3. Entire Agreement. This Agreement supersedes
any and all oral or written agreements or understandings
heretofore made relating to the subject matter hereof and
constitutes the entire agreement of the parties relating to the
subject matter hereof.
Section 5.4. Parties in Interest. All agreements,
representations and warranties contained in this Agreement made
by or on behalf of any of the parties hereto shall bind and inure
to the benefit of the parties hereto, and their respective
successors, assigns, heirs, executors, administrators and
personal representatives, whether so expressed or not.
Section 5.5. Headings. The headings in this Agreement are
inserted for convenience of reference only and shall not be a
part of or control or affect the meaning hereof.
Section 5.6. Severability. If any provision of this
Agreement shall be declared void or unenforceable by any judicial
or administrative authority, the validity of any other provision
shall not be affected thereby.
Section 5.7. Counterparts. This Agreement may be executed
in several counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
Section 5.8. Governing Law. This Agreement shall be
governed by the laws of the Commonwealth of Massachusetts
applicable to agreements made and to be performed wholly within
such jurisdiction, without regard to the conflicts of laws
provisions thereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed as of the date first written above.
THERMO POWER CORPORATION NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By: /s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxxxxx
Title: Treasurer Title: President
For purposes of Article 4 only:
THERMO ELECTRON CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx
Title: Treasurer
AA960050053
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